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Friday, October 16, 2009

If you can't say anything nice...

Just this evening, the topic came up with my family of what, if anything, I would say about a case long after my representation of a client was over. I was asked to declare whether I believed a particular client had been guilty or innocent. With my own family, I was extremely cagey on some questions and flat-out refused to answer others. My obligation to hold my client's confidences goes to the grave. My grave, not his. And my continuing duty of loyalty, as we call it here in Kansas, goes just as far. I don't think I am prohibited from talking about cases in sort of general ways. But even long after a case is over, I am always mindful that I am that client's advocate above all else.

Then I saw this video. (Hat tip to Mark Bennett at Defending People for posting it first.)

This is the lawyer who represented Cameron Todd Willingham at trial and he's getting a little annoyed that we're all still talking about the doubt that has been cast on Willingham's guilt 5 years after he was executed. David Martin thinks it's "absurd" that we're wasting our time on this obviously guilty guy.

Clearly, David Martin does not come from the same school of criminal defense that I do. I don't care how much I disliked my client, how much I firmly believed in his guilt, or how much my representation was being attacked. I would never, NEVER talk about any of my former clients in this fashion. I would never talk about the (ridiculously simplistic) experiments I had conducted that helped convince me my client was guilty. I would never call efforts to exonerate my client after the fact absurd. I would never let anyone know what little respect I had for my client and our relationship. I would also never think that my job as a trial defense attorney was ONLY to challenge the state's evidence through vigorous cross-examination.

I have nothing nice to say about David Martin after watching this appalling performance, so perhaps I should not say anything at all. Except, I have no duty of loyalty to David Martin. But I do feel a duty of loyalty to my profession. I happen to think that defending people is one of the most noble things you can do. I can go on quite a tear about how we defenders of the constitution are the true patriots and the most noble actors of all in the criminal justice system. I take my job seriously. Very seriously. My clients trust me with their lives, just as Todd Willingham had to trust David Martin. As much as I rail against prosecutors and cops who bend the rules or cut corners, no one offends me more than the defense attorney who does not live up to my high ideals for the profession. From what I've seen in this video, David Martin is the kind of defense attorney I don't ever want to be.

Oh, and I don't think he helped persuade me that Willingham got such a fair trial. If that was the attitude of the guy assigned to defend Willingham, I have to wonder whether Willingham really got the sort of trial advocacy he deserved. Maybe a defense attorney who wasn't so sure the guy was guilty might have gone looking to find some experts who would counter the bad arson evidence that was produced by the state.

When I saw this I was horrified. My first thought was one of his clients has been executed and was innocent it seems. My next immediate thought was...God help anyone who has this person as their attorney.

Surely there is some kind of Code of Ethics that lawyers must abide by?

I was fuming today because a prosecutor I know remarked how he "respected" David Martin because he "understands what it means to be an officer of the Court and not just an advocate". I still don't know what that means, but I bit my tongue so hard it nearly fell off.

At least he's not a Public Defender. Oh, and I read that his defense was so INCOMPETENT he was barred from ever handling a capital case again. God, I hope that's true.

I think under the Kansas ethical rules, I could make an argument that he had violated client confidentiality, his duty of loyalty to his client, and we have a sort of catch-call rule sort of like conduct unbecoming in the military.

Whether a disciplinary administrator would find a technical rule to apply this behavior to or not, I hope I don't know any defense attorneys who don't feel strongly that his behavior on AC360 was unacceptable. Like PdinHI, I have read suggestions that Martin's representation of Willingham was less than zealous and this interview leads me to believe those suggestions have merit.

PdinHI, you have far more restraint than I have. If a prosecutor had said that to me, he would probably be hearing from me every time I saw him. It's probably a good thing I do appellate work where I don't have to work with prosecutors on a daily basis.

The article in the New Yorker only proved the beginnings of how unqualified David Martin is to represent an individual charged with stealing a bag of chips from a 7-11, let alone in a capital murder case. As a defense attorney with near 25 years experience handling the most serious kinds of cases, I would be shocked and appalled that he has been permitted to wander through the courts representing accused persons were it not that he practices in the State of Texas (aka the State of Insanity when it comes to criminal cases; a state where a trial judge was known for signing his death sentence warrants with a smiley face). Given his stated philosopy and his apparent kinship to law enforcement and their views on a case, he should be barred from handling any criminal cases. The only way to be a successful defense attorney (not merely monetarily, but in the actual defense of clients), one has to always take a cynical view on the State's evidence, whether you choose to believe your client or not, and THOROUGHLY AND CONTINUALLY investigate and challenge the prosecution's theory and evidence. Hell, this dope can't even understand now that the "re-created" crime scene evidence, though it burned the same way, does not mean that the fire was set the same way. The science he felt comfortable relying on (and not learning enough about otherwise to truly grill the State's experts on cross) was already deemed to be junk science. I guess his willingness to rely on it makes him a junk lawyer.Read the New Yorker article and you'll see just how much more of an a**hole this guy truly is. I actually feel bad for the herd of cattle he tends to...although I wouldn't be surprised to find he is more humane with the animals than with his human criminal case clients. He ought to be sued by Willingham's family for malpractice and wrongful death (read the article and see just how he let the State run all over him presenting BS to get the jury to vote for death, too...it's disgusting). True justice would be his disbarment and a judgment in the millions...make him sell off that herd and his 10 gallon hat, too.

My first introduction to David Martin was from that New Yorker article, and you're absolutely right, it made him look like an ass. His quote there was along the lines of, "well, we of course Willingham was guilty." But still, I'm stunned he went as far as he did in this Anderson Cooper spot. I am glad to see that the reaction to Mr. Martin's t.v. appearance has been almost universal condemnation. (Actually, I've seen nothing but condemnation, but maybe there is someone out there who doesn't see how bad it was.) I sincerely agree that disbarrment is a must for this guy.

Anyone who wants to know more about the Willingham case should definitely read the New Yorker article. It really explains in depth just how flawed the arson "evidence" was.

Sadly, the least qualified attorneys are often chosen by the courts and prosecutors to "represent" death eligible defendants in certain places, since they all but ensure conviction. The incompetent attorney was just a pawn in the larger scheme of a broken system. If it wasn't so sad and the consequences so real, this guy would actually be funny.